The coronavirus isn’t going away anytime soon. And even if it were to magically disappear, there’s the growing realization that many coronavirus survivors appear to suffer from ongoing effects from their viral battle.

For example, the Mayo Clinic reports that long-term coronavirus symptoms and effects can include:

·      Fatigue

·      Shortness of breath

·      Headache

·      Cough

·      Joint pain

·      Damage to heart muscle

·      Scar tissue in the alveoli of the lungs

·      Blood clots

Extreme fatigue is one of the most common long-term complications from a coronavirus infection and its symptoms seem to mimic encephalomyelitis/chronic fatigue syndrome (ME/CFS). According to the Centers for Disease Control and Prevention (CDC), ME/CFS is severe fatigue that does not improve with rest and can worsen after any form of physical or mental activity. There is a proposed bill in Congress to promote research into ME/CFS and how it may relate to coronavirus survivors.

These long-term complications affect not just the health of coronavirus survivors, but also their ability to work. So this begs the question: could the lasting effects of the coronavirus constitute a legally recognized disability? Yes, and this article will discuss how.

Disability Protections in the United States

Multiple jurisdictions have laws that offer various disability rights. However, the most prominent one for most workers is the Americans with Disabilities Act of 1990 (ADA), which is a federal law. There is also Section 501 of the Rehabilitation Act of 1973 which basically applies the ADA’s disability discrimination standards to the federal government.

The ADA has four major provisions that outline the legal protections and privileges as they relate to disabilities. Title I applies to the employment context, while Titles II, III and IV apply to public entities, public accommodations and telecommunication, respectively. For the rest of this article, any reference to the ADA will be to Title I and its employment law provisions.

How the ADA Works

At its core, the ADA is a law that bars employers from discriminating against employees and job applicants who have a disability. Unlawful discrimination can apply to practically any aspect of employment, such as:

·      Hiring

·      Firing

·      Training

·      Promotions

·      Job assignments

·      Compensation (including benefits)

ADA protections can also apply to individuals without disabilities. If there is a record of an individual’s disability, or the individual is regarded as having a disability, they could still receive ADA protections even though at the time of the discriminatory act, they were not actually disabled.

For example, an employer refuses to hire an applicant for a warehouse job because the employer thinks the applicant has a back injury that prevents them from being able to lift heavy objects

An important point to remember about the ADA is that it does not prevent an employer from taking adverse employment action against a disabled individual who is not qualified for the job.

Let’s say a position requires someone with five years of relevant experience, but an applicant only has two years of necessary experience. In this situation, the employer can refuse to hire the applicant due to insufficient experience. This is true even if the applicant has an ADA-recognized disability.

The ADA also has another important element: the reasonable accommodation. A reasonable accommodation is any workplace modification (including policy changes) that allows an otherwise qualified individual with a disability to perform his or her job.

An employer must make a reasonable accommodation for a qualified individual with a disability as long as it does not impose an undue hardship on the employer. 

Applying ADA Protections to Workers with Coronavirus-Based Disabilities

In analyzing whether the long-term complications of a coronavirus infection can warrant ADA protections, two major questions arise. The first is whether the complication counts as an ADA-recognized disability. The second is whether an employer can make a reasonable accommodation.

The ADA recognizes disabilities that consist of a mental or physical impairment that substantially limits a major life activity. A physical impairment can include any medical issue that affects the physical body. A mental impairment can potentially refer to any psychological or mental disorder, such as mental illness or an intellectual disability.

The impairment must also result in a substantial limitation of a major life activity. A major life activity sounds like it might only refer to a small list of bodily functions, but in reality, it can apply to almost any bodily function, such as:

  • Seeing
  • Hearing
  • Bathing
  • Dressing
  • Eating
  • Walking
  • Thinking
  • Reading
  • Breathing
  • Talking
  • Sleeping
  • Standing
  • Lifting
  • Bending
  • Communicating with others

This major life activity must also be substantially limiting. Despite this wording, this doesn’t require that the impairment severely limit a major life activity. Thanks to the Americans with Disabilities Act Amendment Act of 2008 (ADAAA), courts and employers are to interpret the term “substantially limits” broadly to allow maximum legal protection for individuals.

Many of the reported long-term coronavirus complications—such as difficulty thinking, organ damage, severe fatigue and trouble breathing—appear to qualify as disabilities under the ADA. It’s easy to see how an office worker with trouble concentrating could have difficulty in carrying out essential office duties, like participating in meetings or writing reports.

However, deciding if an applicant or employee has a disability under the ADA is a very fact-specific process. There is no “formula” or comprehensive list to help courts or employers quickly and easily decide if a medical issue constitutes a disability.

As if that weren’t fuzzy enough, there’s also the second major question of deciding if and when an employer must provide a reasonable accommodation to an employee. What counts as a reasonable accommodation will depend on the employee’s specific needs as well as the resources of the employer and the nature of its business.

An employer does not need to lower its job standards as a means of providing a reasonable accommodation to an employee. The following is a list of potential accommodations that are reasonable under the ADA:

  • Modified schedules
  • Extra rest breaks
  • Temporary reassignment to a different position
  • Allowing employees to use certain items at work
  • Adjusting workplace rules for the disabled employee

If a coronavirus survivor suffers from trouble breathing, an employer might be able to accommodate them by allowing them additional break time during the day. Or if the employee suffers from joint pain, the employer might need to allow the employee to have a chair when normally they work while standing.

But if the coronavirus survivor is a delivery truck driver and suffers from heart damage that makes lifting heavy boxes impossible, there may not be a reasonable accommodation possible. Therefore, it’s possible to conclude that the delivery truck driver is no longer qualified for that position.

What Coronavirus Survivors Must Do to Protect Their Rights Under the ADA

If you had a coronavirus infection and suffer from its lingering effects, there are several important points to remember to protect and exercise your rights under the ADA, especially in regard to reasonable accommodations.

First, if you need a reasonable accommodation, you will most likely need to proactively ask for one. You don’t even have to mention the ADA or use the term “reasonable accommodation,” when making your request. But you will need to make it clear that you have a medical condition that requires a workplace modification.

In situations where your disability is obvious, you may not have to be the first to bring up the topic of a reasonable accommodation with your employer. But to obtain a reasonable accommodation as quickly and easily as possible, you should be ready to ask for the reasonable accommodation.

Second, after asking for a reasonable accommodation, your employer has the right to ask for additional information, including completing a medical exam or providing documentation of your disability and why it warrants a specific reasonable accommodation. You need to be prepared to provide this information, which your employer must keep confidential and stored in a separate medical file.

Third, your employer must give extra consideration to the reasonable accommodation you specifically request; however, they are not required to provide it to you. Your employer has the discretion to choose an accommodation that is easier to implement or is less expensive.

Fourth, if you believe your ADA rights have been violated, you may need to file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) or notify your EEO Counselor (if you are a federal employee). However, before it gets to this point, make sure you’ve done everything you can to work with your employer to find a solution.

It’s common for a request for a reasonable accommodation to consist of several back-and-forth discussions between the employer and employee. It’s during this time that the employer will try to determine if the employee has an ADA-recognized disability and if so, how to best provide an accommodation.

So don’t be surprised if you submit a request for a reasonable accommodation and your employer doesn’t automatically approve it. But at the same time, if you’ve provided sufficient information to support your disability and reasonable accommodation request, but your employer appears to be stalling or is asking for even more hoops for you to jump through, you may need to take additional action.



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